Citation Nr: 0213467
Decision Date: 10/02/02 Archive Date: 10/10/02
DOCKET NO. 01-02 423 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Eligibility for dependents' educational assistance under the
provisions of title 38, chapter 35, of the United States
Code.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Phillip L. Krejci, Counsel
INTRODUCTION
This case comes to the Board of Veterans' Appeals (Board)
from a March 2001 decision by the St. Louis, Missouri
Regional Office (RO).
Review of the file reveals that in August 2001, the veteran
raised the issue of entitlement to service connection for
left lower extremity paralysis. This issue is not currently
developed or certified for appellate review. Accordingly, it
is referred to the RO for appropriate action.
FINDINGS OF FACT
1. The veteran is rated totally disabled under the
provisions of 38 U.S.C.A. § 1151. He is not rated totally
disabled due to a service-connected disability. He was not a
member of the Armed Forces on the date the application was
filed herein.
2. The appellant is the veteran's son, but having been born
in 1974, he is not a child for VA benefit purposes.
CONCLUSION OF LAW
Eligibility is not established for dependents' educational
assistance. 38 U.S.C.A. §§ 101(4), 3501 (West 1991 & Supp.
2002); 38 C.F.R. §§ 3.807(a), 21.3021(a)(1) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA) was passed shortly before the
application herein was filed. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, and 5107 (West Supp. 2002). VCAA identifies and
describes duties on the part of VA to advise a claimant of
the evidence needed to substantiate a claim, and to help a
claimant obtain that evidence. Id. These duties have been
implemented by regulations published at 66 Fed. Reg. 45620
(Aug. 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a),
3.159, and 3.326.
However, there are some claims to which VCAA does not apply.
Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It has
been held not to apply to claims based on allegations that VA
decisions were clearly and unmistakably erroneous. Id.
Moreover, it has been held not to apply to claims that turn
on statutory interpretation. Smith v. Gober, 14 Vet.
App. 227, 231-2 (2000). Similarly, the Board finds that the
VCAA does not apply in cases in which the law, and not the
evidence, is dispositive. Sabonis v. Brown, 6 Vet. App. 426,
430 (1994). For reasons made apparent below, this is such a
case.
Under the provisions of 38 U.S.C.A. § 1151, a May 2000
decision by the St. Louis Regional Office assigned the
veteran an evaluation of total disability for disability
resulting from VA hospitalization or medical or surgical
treatment. However, compensation under the provisions of
section 1151 does not convey the same status as service
connection. See Mintz v. Brown, 6 Vet. App. 277, 281-2
(1994); VAOPGCPREC 75-90 (Jul. 18, 1990).
In January 2001, the veteran's son, the appellant herein,
applied to VA for dependents' educational assistance.
Persons eligible for VA educational assistance include a
child of a veteran who:
1) died of a service-connected disability; 2) who has a
totally disability, permanent in nature, due to a service-
connected disability; or 3) who, when the application for
educational assistance was filed, was a member of the Armed
Forces and was, for a period of at least 90 days, missing in
action, a prisoner of war, or detained by a foreign power.
38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021(a)(1).
For VA benefits purposes, the term ''child'' means a person
who is unmarried and (i) who is under the age of 18 years;
(ii) who, before attaining the age of 18 years, became
permanently incapable of self-support; or (iii) who, after
attaining the age of 18 years and until completion of
education or training (but not after attaining the age of 23
years), is pursuing a course of instruction at an approved
educational institution. 38 U.S.C.A. § 101(4)(a).
The appellant was born in September 1974, and there is
absolutely no evidence that prior to the date that he
attained 18 years of age that he was permanently incapable of
self-support. As such, he is not a child for VA purposes.
38 U.S.C.A. § 101(4). Moreover, the provisions of
38 U.S.C.A. § 3501 and 38 C.F.R. § 21.3021(a)(1) are clear.
For the appellant to be eligible for education benefits the
veteran must be totally disabled due to a service connected
disorder. Currently, the veteran is not totally disabled due
to a service connected disorder. Thus, the benefit sought on
appeal must be denied as a matter of law. Sabonis.
In reaching this decision the Board considered the claim that
the veteran should be rated as 100 percent disabled due to a
service connected disability, and that as a result,
eligibility still exists for the appellant to be awarded
benefits under Chapter 35 of title 38, United States Code.
Notably, however, while the Board is referring this issue to
the RO for appropriate consideration, a evidence shows that
the veteran did not present such a claim of entitlement prior
to the appellant's August 2001 submission of his notice of
disagreement. Hence, even if awarded, a total disability
evaluation for service connected compensation purposes would
not predate August 2001. 38 U.S.C.A. § 5110 (West 1991). As
the appellant turned 26 in September 2000, the provisions of
38 U.S.C.A. § 3512 (West Supp. 2002) and 38 C.F.R. §
21.3040(c) (2001) are applicable. They state that no person
is eligible for educational assistance who has reached his
26th birthday before the effective date of a finding of
permanent and total disability. Thus, even assuming arguendo
that the veteran should be 100 percent disabled due to a
service connected disorder, the effective date of such a
grant cannot predate his August 2001 claim. Since the
appellant turned 26 before August 2001, he does not meet the
basic prerequisite to establish entitlement to educational
assistance.
Finally, in making this decision the Board acknowledges the
veteran is totally disabled due to an injury sustained in a
VA hospital. The Board, however, is not free to ignore or
make exceptions to laws passed by Congress. See 38 U.S.C.A.
§ 7104(c) (West 1991). The law is quite specific as to the
criteria for educational benefits, and basic eligibility has
not been shown in this case. Perhaps the law should be
changed, however, "the fact that Congress might have acted
with greater clarity or foresight does not give (the Board) a
carte blanche to redraft statutes in an effort to achieve
that which Congress is perceived to have failed to do."
United States v. Locke, 471 U.S. 84, 95 (1985). Where the
law is dispositive, the claim should be denied because of the
absence of legal merit. Sabonis. Therefore, the Board has
no alternative but to deny the appellant's appeal as he does
not meet the legal criteria for eligibility.
ORDER
Eligibility for dependents' educational assistance, under the
provisions of title 38, chapter 35, of the United States
Code, is denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps to take if you disagree with our decision. We
are in the process of updating the form to reflect changes in
the law effective on December 27, 2001. See the Veterans
Education and Benefits Expansion Act of 2001, Pub. L. No.
107-103, 115 Stat. 976 (2001). Meanwhile, please note these
important corrections to the advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.